The offense is characterized by four main features: social danger; wrongfulness; guilt; punishability.
Let's consider these signs of an offense in more detail. Public danger- This is a sign of an offense, which consists in causing harm to the legitimate interests of the individual, society and the state. Public danger is characterized by two indicators:
The nature of public danger (qualitative feature);
The degree of public danger (quantitative feature).
According to the degree of public danger, offenses can be divided into two groups:
1) crimes (criminal offenses);
2) unlawful misconduct ( administrative misconduct, disciplinary offenses, civil offenses - tort).
Crimes differ from misdemeanors in that they have a high degree of social danger, which is determined by the value of the object of the encroachment, the amount of damage caused, and the degree of guilt of the offender. Thus, the crime- a socially dangerous act prohibited by the criminal law, infringing on relations especially protected by the state: social order, personality, property, public order, etc.
Misconduct (wrongful misconduct) are offenses characterized by a lesser degree of social danger. Depending on the nature of the harm inflicted, the object of the offense and the characteristics of the corresponding sanctions, unlawful offenses are divided into: administrative, disciplinary and civil offenses.
Administrative misconduct - offenses that infringe on public order established by law (violation of the rules road traffic, fire safety, sanitary hygiene, etc.).
Disciplinary misconduct- these are illegal violations of labor, service or academic discipline.
Civil misconduct (tort)- offenses committed in the field of property and such non-property relations, which are of spiritual value to a person, that is, non-fulfillment or improper fulfillment of obligations assumed, in causing this or that subject of this or that property damage.
Wrongfulness- a normative sign of an offense, which reinforces the prohibition of socially dangerous acts, that is, socially dangerous acts directly provided for by the norms of law are recognized as offenses. There are several types of wrongfulness (as a legal expression of social danger): disciplinary; administrative; civil law; criminal. The circumstances precluding the unlawfulness of the act are: necessary defense - proportionate protection against unlawful encroachments by causing harm to the infringer; extreme necessity - action to eliminate the danger by causing harm to third parties; detention of a person who committed an offense by means of proportionate harm in the event of resistance.
Guilt- This is a subjective sign of an offense, which expresses the internal attitude of a person to a socially dangerous act and its consequences in the form of intent or negligence. According to this criterion, an offense is recognized as an unlawful act committed guilty, that is, knowingly (acts committed by incapacitated and irresponsible persons are not crimes, these persons are not capable of acting guilty). If the person did not foresee the socially dangerous consequences of stupefying (should not have or could not), there is an incident or an incident without fault.
Punishability- this is a sign of an offense, which expresses its negative state assessment as an act of a dangerous, illegal, guilty person.
An offense is an act for which legal liability is provided in the form of a criminal penalty, a disciplinary, administrative or property penalty.
40. general characteristics elements of the offense
There are a number of opinions regarding legal liability. For example, ND Durmanov, NI Zagorodnikov believe that such a basis is an offense, in the opinion of others (BS Zlobin), the basis of responsibility is guilt. There is no fundamental difference between these views. Proponents of guilty responsibility emphasize the importance of the nature and degree of guilt for the individualization of responsibility. The other side pays more attention to the offense as a fact with which sanctions legal norms associate the emergence of responsibility. Still others, who consider the composition of an offense as the basis for legal responsibility, successfully combine the advantages of different approaches, since they take into account the influence of objective and subjective factors on legal responsibility.
The legal structure of offenses should be understood as a complex of interrelated components (objective and subjective) necessary for the imposition of legal responsibility.
The legal structure of offenses includes:
· Subject - a sensitive, sane person who has reached a certain age or, in cases provided for by law, an organization that committed this act. Age of criminal responsibility, by general rule, begins from the age of 16, and for especially grave crimes - from the age of 14; civil legal responsibility provided from the age of 15; administrative - from the age of 16;
· Object - public relations protected by law, to which damage is caused;
· subjective side- characterizing the mental attitude of a person (guilt) to the perfect offense.
The elements of the subjective side of the offense are:
a) guilt- the main element. Two forms of guilt are considered: intent (means that the person who committed the offense was aware of the illegal nature of his act, foresaw and desired the onset of its consequences and deliberately allowed them), which, in turn, can be direct and indirect; and negligence (the subject of the offense either foresees the onset of unlawful consequences of his act and, due to frivolity, hopes to prevent them, or does not foresee them). Depending on this attitude to the consequences of the offense, negligence is divided into arrogance and negligence;
b) goal- This is the subject's idea of the result of the offense;
v) motive- internal motivation, which was guided by the offender when committing an offense;
The objective side is a set of external signs that characterize this offense:
a) unlawful act (action or inaction);
b) harm caused public relations;
c) the causal relationship between the unlawful act and the resulting consequences.
It should also be mentioned about such a concept as sanity, which is the ability to act consciously. Sometimes this ability is lost due to mental illness or dementia. In such cases, the court, on the basis of a forensic psychiatric examination, recognizes the person who committed a socially dangerous act as insane. Insanity excludes legal liability.
The fact that by no means every action and inaction committed under the control of the consciousness and will of a person should be considered a crime, perhaps, never raised doubts in anyone. Another thing was equally obvious: only an act that entails certain consequences can be called a crime.
It is noteworthy that, when deciding whether it was advisable to refer to them in the definition of a crime, N. S. Tagantsev at one time expressed a number of considerations that are now worthy of attention. So, noting that some foreign criminologists are inclined to specifically mention in the definitions of crimes the consequences of criminal acts, he stated: understood as the very encroachment on a legal norm, the very damage to a law-protected interest or putting it in danger, they (criminal consequences) are inherent in any criminal act , however, with such an interpretation, this sign of a crime loses its practical significance. Concerning the solution of the debatable issue of the existence of crimes that do not generate material consequences, the author proceeded from the fact that there can be no human behavior that would not be accompanied by a wide variety of changes in the external world, but at the same time emphasized: criminal law deals only with those of them that turn out to be legally significant, essential. Linking criminal consequences only with this kind of changes in the surrounding reality, N.S. In this regard, characterizing danger as one of the possible criminal consequences, he believed that it always exists objectively, regardless of the fact itself; awareness of her guilty, and the nature - deliberate or careless - mental attitude; can either be directly indicated in the criminal law, or implied by it; be the result of not only action, but also inaction of a person; threaten certain or uncertain benefits; and others. In addition to recognizing the danger as a type of criminal consequences of a certain group of acts, the author mentioned two more of its semantic meanings in criminal law: as a moment of developing harmful activity (“an evil and subjectively dangerous will, being carried out outside, gradually acquires an objective danger, which is becoming more and more formidable and more formidable ... ") and as one of the" essential features defining the very concept of a criminally punishable untruth; the volume and energy of this danger are an essential point that serves as the basis for establishing the relative criminal importance of the act and for determining the size of the criminal penalty by the legislator ”110.
With such a variety of semantic meanings, the term "danger" was used in the future. However, it acquired an extremely important role after the adoption in our country of the Guiding Principles on Criminal Law in 1919, in which Art. 5, the provision was formulated that a crime is a violation of the order of public relations protected by criminal law, and at the same time the following article clarified: a crime is "an action or inaction dangerous for a given system of social relations."
It is noteworthy that in this case the danger of an act was first considered by the legislator as a mandatory sign of any crime (regardless of whether it entailed or did not entail actual harm) and its direction was linked to the "system of social relations" itself. The Criminal Codes of the RSFSR of 1922 and 1926, without directly mentioning this kind of system, declared a crime only a socially dangerous act, seeing in it a threat to the foundations of the Soviet system and the rule of law established by the workers 'and peasants' government for the period of transition to the communist system ”. In the original edition of Art. 7 of the Criminal Code of the RSFSR in 1960, the crime was characterized as a socially dangerous act encroaching on the Soviet state system, the socialist economic system, socialist property, personality, political, labor, property and other rights of citizens, as well as another socially dangerous act encroaching on the socialist legal order, provided by the Special Part of the Code, When preparing the draft of the current Criminal Code of the Russian Federation (1994), its developers, wishing to “abandon ideological clichés, and also emphasize the idea that criminal law protects not only public interests, but also rights and legitimate interests each individual person ”, suggested that not a socially dangerous act should be recognized as a crime, but an act that“ causes or creates a threat of harm to an individual, society or the state ”111. Not accepting this point of view, the legislator considered it expedient to include in the definition of the concept of a crime an indication of its social danger, specifying, however, that it may be directed against an individual, society or state.
Not only the proposal for terminological substitution, but also the rejection of it by the legislator testifies in favor of the opinion about the relevance of solving the issue of the relationship between the social danger of an act and its social harmfulness. Not so long ago, these concepts were considered identical by most scientists, and the very idea of looking for distinctive features was sometimes viewed as a word game, terminological scholasticism, which does not carry any constructive principle, since whether we call the objective ability of an act to violate the interests of society "Harmful" or "danger", the essence of the matter will not change one iota112. For the sake of fairness, it should be noted that such judgments were expressed in relation to the idea of associating social danger with crimes, and social harm with other (administrative, disciplinary, etc.) offenses, but in this case this nuance is not so significant. At the same time, if we agree with the identity of the concepts of "danger" and "harmfulness", then the discussion that has arisen about the validity of refusing one in favor of the other should be assessed as a dispute of a terminological nature, and the definition of crime as a social dangerous act should be interpreted in the version proposed in the draft: this is an act that causes or creates a threat of causing harm to an individual, society or the state. Then the persistent desire of many scientists, revealed during the discussion of the project, to preserve in the newly adopted Criminal Code the indication that an act must be recognized as a socially dangerous act should be explained by legislative traditions, the familiarity of the terminology used, the desire for its unification, the expediency of reflecting the ability of the act to cause and create a threat of harm one term, etc. By the way, it is precisely this kind of arguments that the opponents of the position of the developers of the draft of the Criminal Code of the Russian Federation that came into force most often referred to.
Assuming that danger and harmfulness are not one and the same, we must conclude: speaking of the danger of a crime, we must see in it not the harmfulness of an act. and another property. Which one exactly? Several authors have tried to answer this question. For example, it was argued that the concept of social danger is expressed not so much in the damage or threat of its infliction to the objects of criminal law protection, but in the direction of the act against the basic social values113. Such an approach to solving the issue, however, does not give anything new and completely fits into the framework of ideas about the social danger of an act as its harmfulness. The same cannot be said about the position, the supporters of which believe that the essence of social danger lies not in the harmfulness of an act, but in its ability to serve as a “social precedent” (an example to follow), to create a threat of repetition of antisocial behavior114. There are serious objections to this point of view, which have already been partially expressed in the legal literature: law-abiding forms of behavior can also act as an example to follow, and, therefore, this kind of property of an act cannot be associated either with the essence of social danger or with a crime as such; with criminal negligence, it is hardly reasonable at all to talk about imitating people; imitation refers not to the social danger itself, but to the reaction of people to antisocial acts, etc. This position is also faulty because, in its logically expanded form, it leads to the recognition as dangerous that contributes to the manifestation of another danger in the future, and ultimately, the question of its understanding leaves open. It is no accident that, summarizing his research, the author of such a concept was forced to link the disclosure of the essence of public danger through an antisocial precedent and a negative value orientation with the interests of knowing the patterns of harm caused by a crime. It would also not be superfluous to note: following the proposed interpretation of the essence of the social danger of crimes, the theory of criminal law, thereby, willingly or unwillingly, would contribute to the formation of a belief in the admissibility of manipulating information about crime (in particular, with statistical data), hiding it from society.
It must be assumed that the only correct approach to understanding the essence of public danger as an obligatory sign of a crime is the one in accordance with which it is linked to the harmfulness of the act. Adhering to this traditional view, many scientists see two forms in the manifestation of public danger: real harm and the emergence of a real threat of its infliction. By actually equating the social danger of a crime and its danger to public relations, the Soviet legal science carried the idea that material or non-material harm actually inflicted by a crime is harm caused simultaneously as a specific physical or legal entities(if any) and public relations. In this regard, speaking about "breaking", "disorganization", etc. of social relations, the question was raised about the "mechanism" of causing damage to them in each specific case. It was not possible to work out a single solution to this issue, but the adherents of this view were united by the fact that they all characterized the consequences of the crime as changes in social relations (the object of encroachment). The “nature” of the possibility of the onset of criminal consequences, that is, the second form of expression of the danger of encroachment, was not always unambiguously characterized in this case: in some works, the threat of harm to social relations was considered as a sign of the act itself; in others, as a kind of consequences of a crime. Speaking about the physical nature of "nature", the researchers nevertheless emphasized: it represents a certain stage in the development of the objective side, which consists in the fact that the criminal act has already been completely committed and has already caused some changes in the external world, but these changes have not yet led ( although they were able, with the further development of events, to lead) to the onset of a criminal result. It should be noted that in a concentrated form the considered concept of social danger was reflected in the theoretical model of the Criminal Code in the form of the formula: “an action or inaction that causes or creates the possibility of causing damage to socialist social relations protected by criminal law is recognized as socially dangerous” 115.
The same logical premise - the danger of an act is expressed in an encroachment on social relations - has given rise to such a point of view, according to which there is no and, in principle, there cannot be a crime that does not really cause damage. It is clear that this statement is based on different ideas about criminal harm. They are most fully expressed in the position of the authors who advocate the need to distinguish harm, on the one hand, to the object - social relations, and on the other - to their participants and the subject. Asserting that the first type of harm is expressed in the "disorganization" of relations between people and is always inflicted by a crime, regardless of whether the perpetrator succeeded in bringing his plan to the end, and only the second type of harm is real, concrete (physical, property, etc.) ) - is optional, optional, supporters of such an understanding of the consequences of a crime are decisive, the main importance for characterizing its social danger began to be assigned to the very fact of "disorganization" of social relations. The scientific and practical significance of such a solution to the issue is seen in the fact that, “firstly, it establishes a common, internal, objective property (quality) of all crimes without any exceptions, ie, thereby reveals their single essence; secondly, it explains their genetic homogeneity and, consequently, the common source of infection, the sphere of existence, historical variability, means, methods and goals of combating crime; thirdly, it points to the foundation on which the entire multicomponent structure of the social danger of crime stands ... ”116. As for the concept of inconsequential crimes, with this approach, it is assessed as dangerous and harmful, since “it ignores the need for the legislator to establish the“ depth ”of the defeat of public relations in assessing and understanding the social danger of the committed act” 117.
The chapter on the object of the crime discussed the validity of recognizing public relations as what a crime is capable of causing harm. Here, it is only appropriate to note that, having adopted the idea of the Guiding Principles of 1919 about crime as a violation of social relations, legal science at the same time perceived the meaning put into this idea: the danger of any crime is not so much that concrete person, how much in the fact that it violates the interests of a particular class. And even after in the Criminal Code of the RSFSR in 1960 the legislator defined as his task the protection of not only the interests of the state and the rule of law, but also the personal, property and other rights of citizens, the theory of criminal law still saw in the crime “the struggle of the individual against the dominant in a society of relations ”(sometimes it was said about the interests of society as a whole). It must be assumed that it was precisely this interpretation of the social nature of the danger of a crime that prompted the developers of the draft of the new Criminal Code of the Russian Federation to talk about ideological clichés and the desire to emphasize that criminal law is designed to protect both public and personal interests. Meanwhile, from a methodological point of view, the main drawback of Soviet criminal law science was not so much this as something else: defining the concept of crime, she saw in relations between people not what characterizes the social essence of the crime itself, but what constitutes its object. This kind of shift in emphasis quite naturally led to a corresponding change in views on the direction of the danger of committed acts, including encroachments on life, health, honor or dignity: their danger began to be perceived as the ability of action or inaction to cause harm not to the individual itself, but again “the aggregate public relations ". It seems that, having retained the sign of its social danger in the definition of the concept of a crime, the current Criminal Code of the Russian Federation gives grounds to assert: a crime is such an attitude of a person to an individual, society or the state, which is expressed in the commission of an act that causes or creates a threat of harm to them (personality , society or state), and not public relations.
The formulated conclusion is important for resolving the issue not only of what the social danger of a crime is expressed in, but also what factors determine it. Sharing the position according to which the danger does not depend on the will and consciousness of the legislator, who is only able to more or less correctly cognize and evaluate this property of a crime, criminal legal science at the same time, she was unable to develop a unified view of the role that the signs of the subjective side play in this regard (guilt, motive, goal). The range of opinions was very wide, however, with some degree of convention, two main points of view can be distinguished. Supporters of one of them characterized social danger as a property that depends solely on the specifics of the object of the attack, as well as the size, method, place, time and environment of causing harm118. Representatives of another approach were based on the premise that social danger is a property inherent in the crime as a whole and determined not only by the above-mentioned objective, but also subjective signs (guilt, motive, purpose) 119. Note that within the framework of this view, many ideas were expressed, in particular, on the understanding of social danger in the philosophical and criminal-legal aspects; considering it not so much as a property (material, objective, etc.), but as a “special antisocial state of a criminal”; the leading and determining role in it of “objective signs of an act, and among them - the object and consequences of the crime, or, on the contrary, the subjective side; the severity of the nature of the social danger of a crime in its object, and its degree - in guilt; dividing public danger into objective and subjective; the characterization of social danger as a kind of "structure" ("composition", "system", etc.), which presupposes a certain set of elements (the social danger of the action itself or inaction, the social danger of consequences, the social danger of the individual, etc.). ).
Currently the most common, the latest these positions is remarkable in that its supporters do not deny the possibility of danger arising as a result of the innocent actions of an individual, but emphasize the absence of a social character in it, since they “do not encroach on public relations”, “are not included in the system of public relations”, “do not belong to the sphere of relations between people "," do not express either a positive or negative attitude towards them ", etc. If we bear in mind the above-said about the role of social relations in defining the concept of crime, then, calling things by their proper names, it is necessary to clarify: in case of innocent harm it should not be about whether a person encroaches on or does not encroach on social relations, cause them harm or not, but precisely about whether in this case there is an individual's attitude to people, whether it is of a public nature. With this formulation of the question, the need for a negative solution is more than obvious. However, it is one thing when we talk about the social nature of crimes as such, and another thing about the social nature of the danger posed by the act.Can the second be dependent on whether a person is able to realize the harmfulness of his act or not, whether he was aware of it, whether he should was and could he be aware? If we take into account that the reflected always exists outside and independently of the reflecting one, it must be admitted: it depends on the consciousness and will of the individual which option of behavior will be preferred in each specific situation, but the properties of the chosen option of behavior do not depend on the person. Since a different solution to the issue contradicts not only the theory of reflection, but also the idea of social danger as a property of an act to cause or create a threat of harm, one must agree with the statement that from the point of view of direct social losses it does not matter whether someone was killed intentionally or through negligence. , or even fell victim to an accident.
Insisting on the thesis that the social danger of a crime is conditioned by both objective and subjective signs, some scientists have gone even further, referring to the number of factors influencing this danger, circumstances directly related to the identity of the perpetrator (repetition, relapse, etc.). In support of this, they usually refer to the different degrees of severity of the sanctions of the articles of the Special Part of the Criminal Code, which provide for liability for a one-time and repeated criminal offense (a similar argument is often used, by the way, in support of the idea of an increased public danger of a deliberate crime compared to a careless one). The flawlessness of such argumentation raises great doubts, but not because it distorts the position of the legislator (in a number of cases, for example, when identifying categories of crimes, it really gives rise to such an interpretation of the nature of social danger), but because it is based on ideas about the identity of factors influencing the public danger of the crime, the circumstances to be taken into account when designing criminal sanctions... Being the result of the so-called juridization (taking outside the legal category of everything that has no criminal legal significance, and at the same time including in it that which is somehow connected with it), this approach inevitably generates an exaggeration of the role of public danger, and not only when constructing the sanctions of the criminal law (when danger is considered as the only criterion for establishing the degree of their severity), but also when defining the concept of a crime. Is it any wonder that all the definitions of the concept of crime, previously given in Soviet legislation and legal literature, were mainly reduced to a description of its social danger, within the framework of which all other issues were resolved.
Having secured guilt as an independent sign of the concept of a crime for the first time, the current Criminal Code of the Russian Federation thereby gave reason to believe that the objective nature of public danger should be seen in its independence from the will and consciousness of both the legislator and the person who committed a socially dangerous act. If we bear in mind that social danger is a property that characterizes the ability of an act to serve as a source of harmfulness and is expressed in the actual harm caused or the threat of its infliction on an individual, society or the state, then it must be concluded that not only the very presence of this property, but also its magnitude (measure, level, etc.) are determined by the circumstances related to the specifics of the object and the external side of the encroachment, including the place, time, method, setting of the act. In this regard, it is hardly necessary to consider as logical attempts of the authors to create a kind of "compromise" solution to the issue, in which the very fact of the existence of a public danger is not denied, regardless of whether the person was guilty or innocent, and at the same time it is argued that in the aspect of the type and severity of responsibility, that is, within the framework legal regulation, the form of guilt has an impact not on the very existence of social danger, but on its specific magnitude, measure.
The lack of the necessary clarity in what exactly the social danger finds its expression and what is the nature of the factors that determine it, is the main reason for the difficulties arising in the delimitation of crimes from other types of offenses. Currently, one thing is indisputable: the social danger of the deed should play a decisive role in this demarcation. However, the original position remains problematic: it is inherent only in a crime or any offense. Domestic criminal legislation it has long been inclined to regard it solely as a sign of a crime. It is no coincidence that even in the Criminal Code of the RSFSR of 1926, only such an act provided for in the law was not recognized as a crime, which is generally devoid of a socially dangerous nature, and due to two circumstances: obvious insignificance and the absence of harmful consequences. A similar formulation was also reproduced in the Criminal Code of the RSFSR in 1960, with the only difference that an action or inaction formally provided for in the Special Part of the Code was excluded from the number of crimes, but it did not pose a public danger due to the insignificance of the act (there were no indications of obvious insignificance and the absence of harmful consequences ). The current Criminal Code of the Russian Federation in 1996 in its original edition, proclaiming that an action (inaction) is not a crime, although formally containing signs of any act provided for by this Code, but due to its insignificance does not pose a public danger, further additionally established: “ T. e. that did not cause and did not create a threat of causing harm to the individual, society or the state. " Federal law adopted on May 20, 1998, this addition was excluded, and thus, in fact, the wording of the 1960 Criminal Code of the RSFSR was restored.
A different position on this score prevails in the scientific literature. The discussion that took place led most of the authors to the opinion that social danger is a sign inherent not only to a crime, but also to an offense, and, therefore, the difference between them must be sought only in its degree (level, magnitude, etc.). Speaking for the need to make the appropriate clarification in the Criminal Code of the RSFSR 1961), the developers of the theoretical model of the General Part of the Criminal Law proposed, in the section of circumstances excluding the criminality of an act, to formulate the provision: an act or omission that falls under the signs of an act provided for in the law as a crime, but due to its insignificance does not have the social danger inherent in a crime120. There is no need to guess what considerations did not allow the legislator to conceptually accept such a novel and what exactly prompted him to subsequently exclude him from Part 2 of Art. 14 of the Criminal Code of the Russian Federation the words “v. e. that did not cause and did not create a threat of causing harm to the individual, society or the state. " It is more important to pay attention to something else. As already noted, social danger is a property of an act that characterizes its ability to cause or create a threat of harm. Following this understanding, it is logical to conclude that an act should be considered as not posing a public danger not because of its insignificance, but because of the absence of real or threatened harm caused by it. An approach in which the social danger of an act is made dependent on its insignificance, and not vice versa, insignificance - on the social danger should be called paradoxical. It is possible to debate whether it is enough to be guided only by social danger when assessing the significance of an act, but in any case it is impossible, firstly, as they say, to put the cart in front of the horse and, secondly, to recognize that the act may not pose a public danger and at the same time significant (even to a small extent) from the point of view of criminal law. Bearing in mind both of these considerations, it is appropriate to conclude that an action (inaction) provided for by the criminal law should not be considered a crime, which contains a sign of insignificance, that is, has not reached the level of public danger required for a crime.
More on the topic Chapter 2. Social danger of crime:
- Chapter 15. Crimes against public security and their prevention of crimes related to illegal circulation of weapons
- CHAPTER 9 MEDICAL MEASURES FOR PERSONS WITH MENTAL DISORDERS WHO HAVE PUBLIC DANGEROUS ACTIONS
The complexity of distinguishing an administrative offense from other offenses is due to the presence of a number of common features inherent in all types of offenses.
According to the main criterion - the degree of public danger, all offenses are divided into:
1.crimes (lesser degree of danger - an administrative offense);
2. misconduct.
The crime- This is an act enshrined in criminal law, for the violation of which there is criminal liability.
Criminal law - This is a norm that enshrines responsibility for offenses that pose a great public danger to society.
Administrative offenses- an act prohibited by administrative law. These offenses, which pose less public danger than criminal offense... The same acts can be regarded as more or less dangerous, and, therefore, recognized as crimes or administrative offenses. Administrative offenses occupies an intermediate position between crimes and misconduct.
Offense is an act aimed at violating public order, causing moral and material damage, non-compliance with the established instructions and ignoring prohibitions. Any offense has specific characteristics: it is committed by a certain person in a certain place, it is contrary to the existing law and is clearly defined on these grounds.
Any social interests may be the objects of the offense.
The main objects of the crime are public relations ... And interests of the individual, any form of ownership, constitutional order, safety and environment.
The degree of public danger is the main criterion when differentiating between offense and crime. This border is rather arbitrary and mobile. The same act can be classified as both an offense and a crime.
Only crimes suggest criminal penalty, the appointed court decision, and as a result - the presence of a criminal record of the subject.
In case of an offense, the measures of influence are not so harsh. These can be fines, community service, and even arrest, but all of this does not imply a criminal record. For a crime, a teenager can be tried at the age of 16, but in some cases it is allowed to prosecute from 14. Administrative responsibility comes from the age of 16. Until then, the parents are responsible for the child's offense.
Thus, the difference between a crime and an offense is as follows:
The highest degree of public danger is a crime.
Conviction occurs only when a crime is committed.
The offense is regulated The Administrative Code, and the crime is Criminal.
2.2 Differences between crime and disciplinary misconduct
There is no doubt that there is a huge difference between misconduct and crime. But, as practice shows, a person first commits misconduct and, in the case when he remains unpunished, proceeds to commit more serious crimes. Therefore, it is necessary to fight against the slightest violations of the law, and not just against crimes.
The line between misdemeanor and crime is very fragile. For example, the driver greatly exceeded the speed limit - this is a misdemeanor, but if he hits a pedestrian, then it will already be a crime. Even the smallest deviations from the law can lead to tragic consequences, which means that in Everyday life laws need to be known and followed.
The legislation describes cases that mitigate and aggravate guilt. The first include: the commission of a crime for the first time, by minors, under the influence of circumstances or under duress, as well as a confession, the presence of young children and assistance to the victim.
Circumstances aggravating guilt include: repeated commission of crimes, involvement of other people, special cruelty, use of weapons or explosives, use of official position. Do not accept valuables or piercing and cutting objects for storage from unfamiliar people, there is always a danger of becoming an accomplice.
A road traffic accident will be considered a crime that has arisen in traffic conditions as a result of a guilty unlawful act expressed in violation of the Road Traffic Rules with causing grievous harm health or resulting in death of a person.
A disciplinary offense (misdemeanour) is an unlawful culpable violation of labor or service discipline by an employee (employee), for which disciplinary liability is stipulated.
For disciplinary offense characterized by the failure of the employee (employee) to fulfill their functional (labor) duties provided for labor legislation, internal labor regulations, military regulations and provisions on internal discipline, job descriptions arising from employment contract(contract) concluded by an employee (employee) with a specific organization.
It is not a disciplinary offense for the employee to behave that is not related to his work duties. Disciplinary misconduct is unlawful, that is, such behavior of an employee that violates applicable law, other regulations about labor.
Failure to comply with an illegal order is not a disciplinary offense. Arbitrage practice regards as lawful behavior the employee's disobedience to the order of the head of the organization that violates the requirements of the Law.
A disciplinary offense is always a guilty act (willful or negligent). Failure to perform work duties through no fault of the employee cannot be considered a disciplinary offense. For the commission of a disciplinary offense, an employee is brought to disciplinary responsibility with the imposition of a disciplinary sanction.
In turn, a crime is the most serious type of offense. Their closed list is given in such a collection of documents as the Criminal Code. In accordance with the legislation, all crimes are divided into crimes of small gravity, medium gravity, grave and especially grave. For your information: the presence of a person at the time of the commission of a crime under the influence of alcoholic, toxic or drug intoxication does not mitigate the guilt.
Signs of a crime that distinguish it from a disciplinary offense:
1) Failure to comply with the order
2) Insulting a soldier by a soldier
3) Unauthorized absence of a serviceman
4) Waste property
5) Violation statutory rules sentry or escort service
6) Violation of internal service rules
7) Abuse of power, excess, inaction of power or negligence in the service of a commanding officer.
Crimes and misconduct are illegal acts (actions or omissions). This is also their similarity. In most cases, a violation of a legal norm itself is a misdemeanor, but sometimes it is recognized as a failure to comply with an order of a body or official to eliminate the violated rules. As already noted, misconduct can be expressed in action or inaction. In the first case, the person does what is prohibited by law (for example, commits petty theft).
A crime can also be committed by action or inaction. Murder is an action. An example of unlawful inaction is the failure to provide assistance to a patient.
The subject (that is, the one who commits) both the offense and the crime is a natural, sane person who has reached a certain age. A person who, at the time of the commission of a socially dangerous act, was in a state of insanity, that is, could not give account of his actions or control them due to chronic mental illness, temporary mental disorder, dementia or other morbid state, shall not be subject to criminal liability. As is well known, a person who has committed a crime in a state of sanity, but before the conviction is not subject to responsibility, is not subject to a disease that makes it impossible to give an account of his actions. The issue is resolved in a similar way in relation to misdemeanors. It is important to note how the first case differs from the second: in the first there is no crime or misconduct itself, and in the second it was, however, the person who committed it is not subject to responsibility, since there is no point in punishing a person who is in a painful state of mind.
As a general rule, the subject of misconduct and crime can be a person who has reached the age of 16. However, the legislation allows for the prosecution of persons who have committed acts stipulated by some articles of the Criminal Code from the age of 14 (murder, rape, etc.).
Both crimes and misdemeanors are inherent in such a sign as guilt. The concept of guilt and in administrative law, and in the criminal one: the mental attitude of a person to his behavior and its consequences; guilt takes the form of intent and negligence. The intent is obvious if a person is aware of the illegal nature of his behavior, foresees harmful consequences and desires them, or deliberately allows such consequences to occur. For example, petty theft is always deliberate. A violation will be classified as committed by negligence if the person foresaw the possibility of harmful consequences, but frivolously counted on their prevention, or did not foresee the possibility of such, although he should and could have foreseen them. Thus, a passenger who has a travel ticket but forgot it at home does not free him from a fine without a ticket for transport.
Both misdeeds and crimes are harmful. True, not all offenses are associated with real harmful consequences and only contain the possibility of their occurrence. Take, for example, violations of fire regulations. Persons guilty of this are subject to administrative responsibility even when there was no fire or other real harmful consequences. But all the same, the harm is obvious - the legal order established in society is being violated, the normal implementation of the functions of the state is inhibited.
First of all, speaking generally, there is such a sign of crime as a public danger.
Crimes are the most harmful to society, and the degree of their harmfulness is so great that a new quality is formed in them - a social danger: these acts either undermine the foundations of social and state system, or cause very significant harm to the most important social relations. It is this quality that has determined the fact that such acts are declared crimes. Offenses are not socially dangerous. In order to correctly decide the question of whether a given offense is a crime or misconduct, it is necessary in many cases to compare the relevant norms of the criminal and administrative legislation... It should, first of all, bear in mind that the Code of Administrative Offenses established: "Administrative responsibility for offenses provided for by this Code occurs if these violations by their nature do not entail criminal liability in accordance with the current legislation." In addition to this general rule, it is necessary to take into account the specific criteria specified by the legislation, with the help of which it is possible to distinguish between "related", misdemeanors and crimes.
Sometimes to qualify for a violation binding rules as a crime, it is sufficient that although it does not entail, but could entail grave consequences. Thus, violations of the rules for storage, use, accounting or transportation of explosives and radioactive substances, as well as sending them by mail or baggage, if these actions could entail serious consequences, are considered crimes. If the consequences really came, then criminal liability intensifies. In other cases, in order to prosecute, it is necessary to commit an identical offense, and on the condition that the application for the first violation of administrative measures. Thus, cruelty to animals, which resulted in their death or injury, as well as torture of animals, committed by a person who was subjected to an administrative penalty for the same actions during the year, entails criminal liability.
Motive and purpose are also one of the hallmarks that define the dividing line between offense and crime. If the production of moonshine was carried out, for example, for the purpose of sale, then this is a crime, and if there is no such purpose, then an administrative offense.
Many legal scholars believe that the repeated commission of an administrative offense, even if for the previous this person was subjected to an administrative penalty, should not serve as a basis for recognizing it as criminal. The fact of the application of an administrative penalty for a previous offense, they say, refers only to the personality of the offender and does not increase the degree of social danger of the second act, and therefore should not serve as a basis for qualifying it as a crime. After all, no matter how many times one and the same person commits administrative offenses, each of them is just a misdemeanor and cannot pass into another quality. Crime is a category that is not influenced by the personality traits of the offender. Therefore, it is quite reasonable, in our opinion, they raise the issue of excluding those acts from the criminal code for which criminal liability is associated with administrative prejudice (repetition), and about transferring them to the category administrative offenses... But this is still only a theoretical position. The current legislation sometimes attaches great importance to the form of guilt - an act committed intentionally is considered a crime, and objectively the same, but happened through negligence, as an administrative one.
1) in violation of the norms of law;
2) that the offenses are committed intentionally or through negligence;
3) in causing harm to the interests of the individual, society or the state.
8. Establish a correspondence between the signs and elements of the legal structure of the offense:
1) motive lawful conduct; 1) the subjective side;
2) the resulting harm; 2) the subject;
3) medical criterion sanity; 3) object;
4) material benefit; 4) the objective side.
9. Establish a correspondence between the types of the object of offenses and social values and benefits:
1) general; 1) the whole set of public relations protected by law;
2) generic; 2) personality;
3) direct; 3) the life of a specific person.
10. The type of lawful behavior based on the fear of the use of measures of state coercion is:
1) law-abiding;
2) conformist;
3) marginal.
Module 21. Legal liability
1. Any irrevocable doubt in the law or in the case shall be interpreted in favor of the accused is:
1) long-term responsibility;
2) the stage of law enforcement;
3) the presumption of innocence.
2. The need for the guilty person to be subjected to measures of state influence are:
1) safety;
2) coercion;
3) legal responsibility;
4) discipline.
3. Is not a type of legal responsibility:
1) the death penalty;
2) administrative;
3) civil law;
4) disciplinary.
4. One of the principles of legal responsibility is the principle:
1) inevitability;
2) scientific character;
3) professionalism;
4) positivity.
5. Responsibility for past behavior, for actions already committed is responsibility:
1) political;
2) retrospective;
3) moral;
4) positive.
6. What is the immediate basis of legal liability:
1) delicacy;
2) the rule of law providing for liability;
3) the composition of the offense;
4) act of application of the law.
7. The grounds for exemption from legal liability include:
1) the necessary defense;
2) extreme necessity;
3) lack of intent.
8. The function of legal responsibility, manifested in compensation for property damage to the injured party:
1) penalty;
2) educational;
3) compensatory.
What kind of rule of law determines the measures of legal responsibility?
1) regulatory;
2) protective;
3) special action.
What type of legal responsibility does the punishment of imprisonment refer to?
1) administrative;
2) disciplinary;
3) criminal.
Which concept does the following definition correspond to: “One of the forms or varieties of general social responsibility, which applies only to those who have committed an offense, ie violated the rule of law, violated the law ”?
1) legal consequences;
2) legal responsibility;
3) legal responsibility;
4) legal consequences.
Module 22. Legal typology
1. To analyze the similarities, differences and classification of legal systems, the following method is used:
1) statistical research;
2) experiment;
3) numerical analysis;
4) comparative jurisprudence.
2. To which legal family does the national legal system of Australia belong:
1) Hindu;
2) Anglo-Saxon;
3) traditional;
4) Romano-Germanic.
3. The reception of Roman law influenced the formation of legal systems:
1) Australia;
2) France;
3) England;
4) Saudi Arabia.
Which legal family does the Russian legal system belong to?
1) religious and traditional;
2) Romano-Germanic;
3) Anglo-Saxon.
5. A sign of which legal family is the presence of written constitutions with the highest legal force:
1) Romano-Germanic;
2) traditional;
3) Muslim;
4) religious.
6. To which legal family does the national legal system of New Zealand belong:
1) religious;
2) Anglo-Saxon;
3) Romano-Germanic;
4) traditional.
7. The Slavic legal family consists of legal systems:
1) Germany;
2) Romania;
3) Russia;
4) Ukraine.
8. Which legal family is characterized by the division of law into branches:
3) families of religious law.
9. One of the grounds for the unification of legal systems different countries in a legal family is:
1) commonality of legal terminology;
2) the same level legal culture;
3) the same structure of public consciousness.
10. In the countries of which legal family the legislator (and not the court, legal science, etc.) plays a leading role in the formation of law:
1) the Romano-Germanic legal family;
2) the Anglo-Saxon legal family;
3) families of religious law.
11. Name the legal systems (families) classified by the famous comparativist R. David:
1) Romano-Germanic;
2) socialist;
3) family common law;
4) family of religious law;
5) family of traditional law;
6) the family of a primitive society.
What legal family is characterized by the division of law into private and public?
1) families of common law;
2) families of socialist systems of law;
3) families customary law;
4) the Romano-Germanic legal family.
Signs of an offense
Offense is the opposite (antipode) of lawful behavior. Violation in any state is massive and harms public relations, interferes with the normal development of society and the state. All offenses have common features that allow them to be attributed to one social phenomenon- offense. Signs of an offense should be analyzed in the aggregate, the system. They make it possible to distinguish offenses from offenses of other social norms and are detailed in the composition of specific offenses.
There are a number of signs that characterize an offense as an action that is contrary to the rule of law:
Public danger (harm)
Wrongfulness
Guilt
Provided for legal liability
Public danger- this is the main feature that determines the feature of the offense and its fundamental objective basis, delimiting the lawful from the illegal. This sign of an offense lies in the ability of an act to harm public relations, and in the event of an attempt to commit an offense, to put them at risk of harm.
The public danger is manifested in the fact that an offense is always associated with encroachments on the priorities and values of human society, infringes on private and public interests. The social danger is harmful also by the fact that it disorganizes the normal rhythm of the life of society, introducing elements of social tension and conflict. An act of offense is always a challenge to society, a disregard for what is significant and valuable to it. The social harm or danger of an offense, therefore, lies in the fact that it encroaches on the important values of society, the conditions for its existence. Offenses are socially harmful in their typicality, prevalence, they are not single act, but a mass act in its manifestation or having the potential for such distribution.
Public danger is a material sign of an offense that reveals it social essence... This is an objective property of an offense that does not depend on the will of the legislator. Law enforcement agencies can detect socially dangerous acts that, for some reason, fell out of sight of the legislator and therefore were not recognized as offenses. The task of the legislator in this case is the formalization of these acts.
Public danger is a property of any offense. Offenses by the nature of public danger (harmfulness) are subdivided into crimes and misdemeanors. The criterion for distinguishing between crimes and misconduct is not the absence of public danger, but its nature and degree. For example, tax evasion as a criminal offense and as a tax offense differ from each other in the amount of evasion (the amount of damage), which, in turn, is one of the characteristics of social danger.
If the act does not pose a danger to society, i.e. does not harm public relations and does not endanger them with harm, it cannot be recognized as an offense. NS Malein correctly asserts that “the presence of harm is a necessary social sign of any offense, which determines and characterizes all offenses as socially dangerous acts”?
Public danger has its own characteristics. It is advisable to divide the signs characterizing public danger into two groups: those related to the nature of public danger and to the degree of public danger. The nature of the public danger of an offense is determined by the direction of the act against a particular object, the amount of damage, and the form of guilt. Character is a distinctive feature of a feature, a quality of something. The degree of social danger is a quantitative expression of the comparative social danger.
Wrongfulness a formal sign of an offense, meaning the expression of the principle "there is no offense without an indication of that in the law." Behavior inconsistent with others social norms(moral, corporate or ordinary), will not constitute an offense if it is not provided for in a legal norm and is not prohibited by it. The unlawfulness of an offense is expressed in the fact that a citizen, another person violates any existing rule of law, acts contrary to its instructions and thereby opposes his own will to the will of the state, enters into a conflict with him Malein N.S. Offense: concept, reasons, responsibility ... M .: Jurid. lit., 1985.
Thus, wrongfulness is an objective form of social danger. This means that a socially dangerous act must be officially enshrined in a regulatory legal act as illegal. Civil scientists do not always agree with this statement, pointing out that wrongfulness can be formed in a civil contract. However, this does not take into account an important methodological provision, which is in accordance with the agreement of the normative legal act. The contract itself is based on a regulatory legal act and is derived from it.
Several variants of wrongfulness are possible. First, the violation of the prohibition to commit a certain action. For example, the subject violated the regulations and misused budget resources... Secondly, a violation of the obligation to perform an action defined in the rule of law. For example, a witness did not appear at tax authorities to testify. In the first case, the wrongfulness of the action arises due to the violation of a prohibitive norm, and in the second - due to the failure to fulfill a positive obligation.
The peculiarity of the conflict of citizens or other persons with the state, which manifests itself in the form of an offense, is that the subjects act unlawfully, contrary to the norms of law, which prohibit the corresponding behavior or oblige them to take action. Since each rule of law enshrines not only obligations, but also rights, then any violation of a rule of law constitutes an encroachment on the rights of others and, therefore, is socially harmful and dangerous.
However, not all harm to another person is an offense. The legislation allows situations in which such actions are recognized as lawful. This is, for example, causing harm in a state of necessary defense, urgent need, with the consent of the victim, in the performance of professional duties, in cases of industrial risk, detention of a person who committed a crime, execution of a lawful order of the head of work, service.
An act that does not violate any norms of law may be immoral, a violation of the norms of public organizations, but not an offense. The Constitution of the Russian Federation enshrines the principle that no one can be held responsible for an act that was not recognized as an offense at the time of its commission.
If any offense is a wrongful act, then not all illegal act is certainly an offense. For example, criminal law exempts from liability persons who have committed criminal acts under physical duress.
For the recognition of an unlawful act as an offense, it is necessary that it was committed guilty. Guilt- the next sign of an offense. An act can be recognized as an offense only when committed guilty, i.e. in the presence of an appropriate mental attitude of the person to the act and the consequences that have occurred in the form of intent or negligence. Guilt is always a mental attitude to the act being committed and is expressed, first of all, in the fact that the offender is aware of the socially dangerous nature of his act or does not realize, although he could and should have been aware. Awareness of the social danger of an act can proceed from various circumstances and, first of all, from knowledge of the existence of a rule prohibiting such an act.
Situations are quite possible when the offender was not aware of the existence of a corresponding prohibition in the current legislation. However, this circumstance does not exempt from liability for the offense committed. In law, there is a presumption of knowledge of the law. Ever since the times Ancient Rome there is a principle according to which ignorance of the law cannot be excused. V modern conditions the state and its bodies publish all regulations affecting the interests of citizens and other persons. Consequently, everyone should take care of knowing the rules governing the relationship into which he entered or intends to enter.
A capable person, entering into legal relations, is guided by the so-called common sense based on everyday experience, general and professional knowledge. Common sense is quite enough to correctly anticipate the results of your actions, both positive and negative, and consciously choose the appropriate option of behavior, forming a good or bad will. The ability to foresee the results of their actions, think over their options and make an informed choice, a person differs from animals. The latter, acting on the basis of instincts, without reason, cannot act as subjects of an offense even in cases when they cause harm to property or human health.
Guilt itself exists only within the framework of the will and consciousness of the subject. Official definitions of intent and negligence are given in the Criminal Code of the Russian Federation, the Tax Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. For example, in Art. 110 of the Tax Code of the Russian Federation states that "A tax offense is deemed to have been committed intentionally if the person who committed it realized the unlawful nature of his actions (inaction), wished or deliberately allowed the harmful consequences of such actions (inaction) to occur," and the absence of fault of the tax offender acts as circumstances precluding liability for a tax offense (Article 109 of the Tax Code of the Russian Federation).
Taking into account the above, it can be concluded that modern legislation consistently proceeds from the principle that only a person with free will and able to foresee the results of his actions can be held responsible for his wrongful acts committed by him guilty.
Act- the next sign of an offense.
Current legislation and legal theory distinguishes between two forms of action: action and inaction. Moreover, responsibility for inaction is possible only if the subject had a legal obligation to act accordingly. For example, private notaries, auditors, lawyers are obliged to submit a tax return, and failure to act (failure to submit) a tax return is an offense under Art. 120 of the Tax Code of the Russian Federation. The act must necessarily be associated with the will and consciousness of the subject, and legal meaning will have only a conscious and volitional act.
Provided for legal liability- the next sign of an offense. This sign is also sometimes called punishment. To a certain extent, it is derived from the sign of wrongfulness, but at the same time it also has an independent meaning. The foresight (prohibition) of a public dangerous act by law does not mean only the declaration of the prohibition of the act, but predetermines the mandatory establishment of measures of legal responsibility for its commission. For example, this provision is directly enshrined in Art. 106 of the Tax Code of the Russian Federation, which states that “a committed unlawful (in violation of the legislation on taxes and fees) act (action or inaction of a taxpayer, tax agent and other persons for whom responsibility is established by this Code ”.
Thus, in their totality, these features form a descriptive concept of an offense. They make it possible to define the concept of an offense as a guilty illegal act committed by a capable person (citizen, foreigner, official) or by a collective of people (organization, state body, etc.) and causing harm to other subjects of law.